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Landmark ruling on Senate reform looms large for Stephen Harper

OTTAWA—The country’s top court hands down a historic opinion Friday that could set Stephen Harper’s plans for an elected, fixed-term Senate in motion at long last. Or stop them in their tracks.

At the height of the Senate expenses scandal last year, the Conservative government punted its contentious reform plans to the high court despite years of resisting opposition calls to do just that.

Since coming to power in 2006, Stephen Harper had made several attempts to legislate Senate change but all three bills met substantial provincial opposition. (Sean Kilpatrick / THE CANADIAN PRESS file photo)

Prime Minister Stephen Harper asked the Supreme Court of Canada to rule whether Ottawa can act alone to reform the troublesome Senate, or if doing so changes an aspect of the country’s constitutional framework and requires the approval of provinces, and if so, how many is enough?

Since coming to power in 2006, Harper had made several attempts to legislate change but all three bills met substantial provincial opposition, failed to move ahead on the parliamentary agenda, and none was put to the Supreme Court for a judicial opinion as Liberals urged from the get-go. All ended up dying on the order paper.

Harper still doesn’t have many provincial allies for his plans.

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And in the interim, Quebec’s top court, the Quebec Court of Appeal, has ruled the plans are unconstitutional without the consent of provinces.

Harper wants to unilaterally set nine-year Senate terms, create “non-binding” elections, and to kill the constitutional requirement that senators own $4,000 worth of property in the province of their appointment. If all else fails, the prime minister says he should be able to abolish the Senate altogether with the approval of just seven provinces representing half the nation’s population.

At a three-day hearing last November, the best Harper could marshal was the support of three provinces who agreed that Ottawa could abolish the Senate with the “substantial” approval of seven provinces having at least 50 per cent of the Canadian population.

(The prime minister has long danced around the question of whether he would really pursue abolition, saying only that an elected, term-limited Senate was his preference. Lately, cabinet ministers have openly mused a nationwide referendum on abolition might be the only way to push provinces into agreement.)

And as for the Conservative government’s proposals to impose fixed or renewable term limits and to establish provincial elections for senators — the best Harper could win at the high court was the backing of two provinces. Ontario and Saskatchewan agreed he could set terms for senators, but only if they were lengthy enough (nine and 10 years or more, respectively) to guarantee a measure of independence for senators, who are supposed to act as a legislative check on the executive.

Only two others — Alberta and Saskatchewan — agreed Harper alone could set out the framework for “consultative, non-binding” elections; B.C. said it would require the approval of seven provinces and half the population. But others argued such a substantial change needs nothing less than unanimity.

The last time the high court considered (and rejected) Senate reform proposals was in 1980 — before the Canadian Constitution Act of 1982 was patriated and set out new rules for fundamental constitutional change.

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Legal scholars say it is unwise to try to predict any outcome based on the oral hearing. But the judges were clearly skeptical of Ottawa’s arguments and grilled the federal lawyers at length.

Friday’s decision, coming less than six months after the judges heard the case, is an unusually quick ruling. It also comes four weeks after the Supreme Court of Canada decided in another reference case that the prime minister could not make unilateral changes to the composition of the high court itself, that changes to fundamental federal institutions like the Supreme Court require the unanimous consent of the provinces.

No matter how the high court comes down on the series of questions — six in all—that it must answer on Friday, the Conservative government may still have quite a bit of hard work ahead.

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